NERO WOLFE, REX STOUT, THE LANGUAGE, AND THE LAW Ira Brad Matetsky† More than one person has noted a seeming irony of devoting a themed issue of The Green Bag Almanac and Reader, a compilation of the year’s best legal writing, to the Nero Wolfe novels and stories of Rex Stout. After all, one of Mr. Wolfe’s most strongly held views is his oft-expressed disdain for almost all lawyers and the work that they do. In reality, however, both Mr. Wolfe and Mr. Stout share with many lawyers, law teachers, and judges an admiration for fine use of the English language — the celebration of which is the reason The Green Bag Almanac and Reader was created. And both Wolfe and Stout were ready to use the law when it suited their purposes. An attentive reader of the Nero Wolfe novels would correctly conclude that Stout and his creation had at least a general familiar- ity with the law and lawyers. One Wolfe novel, Murder by the Book, and one novella, “Eeny Meeny Murder Moe,” have plots centered on the affairs of law firms; another novella, “The Next Witness,”1 contains two memorable courtroom scenes. Throughout the Cor- pus, Wolfe displays a knowledge of basic legal precepts, or at least knows how to obtain information about the law when he needs it; for example, in The Rubber Band, Wolfe advises clients that a legal claim they might wish to assert has “expired by time” under the statute of limitations, while in “Immune to Murder” he accurately quotes federal and New York State statutes governing diplomatic immunity, and in “Before I Die,” he tests a law student’s knowledge of the law by deliberately misusing a legal term to test whether the student will notice. Wolfe also is not shy about using the legal system or threatening to do so, either on his own behalf to collect fees, or on behalf of a client to assert a claim or to force a suspect to provide information. Occasionally, of course, either Stout or Wolfe misapprehends a legal point. For example, in The Golden Spiders, a lawyer-suspect threatens to “replevy” money that was paid to Wolfe as a fee that he had not yet earned by the time of the payor’s death; this usage of the term “replevy” is technically incorrect, as replevin deals primarily with tangible personal property and is generally not the † Werowance, The Wolfe Pack; Member, Ganfer & Shore, LLP, New York, NY. 1 Reprinted in this Almanac, infra, pp. 99-144. 91 GREEN BAG ALMANAC & READER 2012 proper cause of action in New York to recover a cash payment.2 More seriously, the stories are replete with instances in which Wolfe, Archie Goodwin, and numerous others are arrested or threatened with arrest as material witnesses; in reality, while valu- able as plot devices, material witness warrants are much less common than the Wolfe Corpus would suggest. They are reserved for witnesses who are at risk of fleeing the jurisdiction or who re- fuse to attend court, not those who simply have relevant infor- mation or somehow annoy the police or the District Attorney’s office.3 That Rex Stout was able to depict the law and lawyers in his stories with at least general accuracy is not surprising, because Stout interacted with the law and lawyers on numerous occasions. Needless to say, he had to deal with legal issues surrounding pub- lication rights to his work throughout his writing career; Stout’s files, archived at the Burns Library of Boston College, contain sev- eral folders of correspondence between Stout and his lawyers, and contain no evidence that Stout disdained the legal profession. Stout also dealt with lawyers who represented him or organiza- tions with which he was affiliated in at least two litigations,4 alt- hough he was a defendant in both actions and thus was not the person who chose to resolve the disputes by legal means. Stout interacted regularly with the lawyers for organizations with which he was affiliated, such as Freedom House and the Authors’ Guild. Stout testified before Congress, primarily on copyright law and other legal issues affecting writers, at least six times.5 Most nota- bly, Stout’s non-fictional writings included articles and book re- views discussing several well-known criminal cases, including the Rosenberg case, the Hall/Mills murder case in New York, the Bos- ton Strangler case, and the Brinks robbery.6 2 See, e.g., Equitable Life Assur. Soc. v. Branch, 32 A.D.2d 959, 302 N.Y.S.2d 958 (2d Dep’t 1969). 3 The current statutory provision for material witness orders in New York provides that “[a] material witness order may be issued upon the ground that there is rea- sonable cause to believe that a person whom the people or the defendant desire to call as a witness in a pending criminal action: (a) [p]ossesses information material to the determination of such action; and (b) [w]ill not be amenable or responsive to a subpoena at a time when his attendance will be sought.” N.Y. Crim. Proc. Law § 620.20(1). See also Jeanne E. Thelwell, “The Legal Wolfe,” infra p. 424. 4 See Hart v. Friends of Democracy, Inc. 266 A.D. 203, 42 N.Y.S.2d 554 (4th Dep’t 1943) (libel action in which Stout was a defendant); Walmor, Inc. v. Shapiro, 240 A.D. 969, 268 N.Y.S. 904 (1st Dep’t 1933) (possibly a collection action in which Stout was im- pleaded). There are no published opinions in these cases, but the author is seeking to obtain copies of the records in these cases from the courts or the State Library. 5 See Ira Brad Matetsky, “Mr. Stout Goes to Washington” (forthcoming in The Ga- zette in 2012). 6 For a list of Stout’s principal articles and book review pieces on legal topics, see the Appendix on pp. 97-98 below. 92 MATETSKY, WOLFE, STOUT, LANGUAGE, AND LAW Some of the nation’s jurists have reciprocated Stout’s attention. The Nero Wolfe novels have been read and praised by United States Supreme Court Justices, reportedly beginning with Oliver Wendell Holmes, Jr. According to Stout’s biographer, John McAleer: Justice Oliver Wendell Holmes died on 6 March 1935, at ninety-four. During the last year of his life he read Fer-de- Lance. After his death, a marginal note he had made was found. Carl Van Doren got hold of it and showed it to Rex. It read, “This fellow is the best of them all.”7 More than half a century later, Justice Harry A. Blackmun record- ed that he had read several of the Wolfe novels and enjoyed them.8 Other Justices, though they may not have realized that they shared a viewpoint with Mr. Wolfe and his creator, took a stance aligned with theirs on at least one point of diction.9 It is well known, for example, that neither Wolfe nor Stout would accept the use of the word “contact” as a verb: Wolfe denounces this usage as early as Black Orchids (1941), in which he tells Johnny Keems that “‘contact’ is not a verb under this roof,” and the real-life Stout felt equally strongly about the matter. It is less well-remembered that another voice opposing the use of “contact” as a verb belonged to Justice Felix Frankfurter. Remmer v. United States10 was a criminal case involving an allegedly improper communication with a juror, in which Justice Sherman Minton wrote the opinion of the Court. In his first draft of the opinion, Minton wrote that “a person un- named had contacted a certain juror.” While otherwise approving of the draft opinion, Frankfurter returned it to Minton with a mar- ginal note stating that “I made a vow never to agree to an opinion that uses ‘contact’ as a verb.” Minton responded to Frankfurter: 7 John McAleer, Rex Stout: A Majesty’s Life 244 (1977). McAleer notes that “[t]his phrase was printed on the program prepared for the surprise dinner given Rex by more than a hundred friends, at Sardi’s on his seventy-fifth birthday.” Id. at 543 n.2. The Wolfe Pack’s attempts to locate earlier references to Holmes’ marginal com- ment, and ideally Holmes’s copy of Fer-de-Lance containing his marginal note, are ongoing. 8 See Harry Blackmun, Meet Nero Wolfe, infra p. 408. 9 Most people would describe it as a “grammatical” point, and most people would be wrong, as Wolfe and Stout would be aware. In the story “Method Three for Murder,” a suspect accuses Wolfe of “alienating the affection of my wife” and Wolfe corrects him by substituting “affections” for “affection,” observing that “in that context the plural is used.” When the suspect objects that he didn’t visit Wolfe’s office to discuss grammar, Wolfe points out that his correction dealt not with a matter of grammar but one of diction (that is, the best usage of an individual word rather than the relationship of the words within a sentence to each other). Given that Wolfe correctly observes this distinction, so should we. 10 Remmer v. United States, 347 U.S. 227 (1954). 93 GREEN BAG ALMANAC & READER 2012 My dear Felix: I have your comments on my circulation of No. 304, Remmer v. U.S. I have made the following addition, at the end of the opinion: MR. JUSTICE FRANKFURTER concurs in the judgment of the Court and in the opinion, except that he disagrees with the use of the word "con- tact" as a verb.